[Redacted], Kathy D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Oct 12, 2021

Appeal No. 2020004759 (E.E.O.C. Oct. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kathy D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004759 Hearing No. 443-2020-00062X Agency No. 443-2020-00062X DECISION On June 5, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 4, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic, PS-7, at the Agency’s Busse Processing and Distribution Center in Elk Grove Village, Illinois. On June 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020004759 2 1. From December 17, 2018 and continuing, Complainant was denied overtime opportunities; 2. On March 12, 2019, Complainant’s name was removed from the Preferred Duty Assignment List; 3. On March 14, 2019, Complainant was issued a Letter of Warning (LOW); and 4. Since March 26, 2019, a manager (“M1”) removed work supplies and threatened to remove personal property from the building. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision by summary judgment in favor of the Agency on April 27, 2020. Specifically, the AJ found that management officials articulated legitimate nondiscriminatory reasons for the disputed actions when officials said that Complainant was not eligible for overtime, her removal from the Preferred Duty Assignment List occurred in error and was rectified once management became aware of it, the LOW was issued because of Complainant’s failure to maintain regular attendance, and all employees were told not to use the battery room and were instructed to remove items from that room and thus Complainant was not singled out. The AJ further found that Complainant failed to establish that such articulated reasons were pretextual. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 2020004759 3 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Where, as here, a complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is a complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. We next find the evidence of record fully supports the AJ’s determination that Agency officials articulated legitimate non-discriminatory reasons for their actions. With regard to Complainant being denied overtime opportunities (claim 1), a Manager, Maintenance Operations (“M2”) (African American, female, Black) averred that Complainant was not available for overtime work and was not qualified for the work available because she “is a Maintenance Mechanic, PS- 07, work being perform [sic] minimum skill level is MPE-09.” M2 further averred that Complainant was not assigned overtime because “Complainant does not follow her regular assigned scheduled . . . and the weekly Tour 1 Maintenance schedule.” With regard to Complainant’s name being removed from the Preferred Duty Assignment List (claim 2), the Maintenance Engineering Specialist (“MES”) (Caucasian, male, White) averred that, “I didn't remove the employee from the list. The ABID system removed the employee. There must have been a system error. Employee was put back on the PAR as soon as management was notified of the error.” With regard to Complainant being issued a LOW (claim 3), the notice itself stated that the LOW was being issued based on a charge of failure to maintain regular attendance. 2020004759 4 The LOW listed eight occasions between January 2, 2019 and February 1, 2019 when Complainant was either absent without leave or on unscheduled leave for eight or more hours each time. The LOW further noted that Complainant failed to report for the investigative interview as directed. Finally, with regard to M1 (African American, female, Black) removing work supplies and personal property from the building (claim 4), M1 averred that she gave instructions to all employees to: [R]emove their belongings from the area. I have no knowledge of personal items being in the Battery room. Notices were placed on the items and service talks were conducted. No one removed [Complainant’s] personal property. [She] did not inform anyone her personal items were removed neither [sic] has she claimed specific items being removed. Management witnesses having articulated legitimate nondiscriminatory reasons for their actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we concur with the AJ that Complainant has failed to meet this burden. We note initially that the investigator reported that Complainant failed to provide an affidavit as requested. On appeal, Complainant disputes the AJ’s issuance of a decision without a hearing favoring the Agency and vaguely mentions that she “had issues with the submission of her affidavit” but otherwise does not address the fact that she failed to submit an affidavit. Complainant thus did not provide any rebuttal to the Agency’s articulated reason for its actions and did not provide any evidence establishing that such reasons were pretextual or that management officials harbored discriminatory animus against her protected bases. With regard to discrimination based on race, sex, and color, we note that both M1 & M2 share the same protected bases as does Complainant. On appeal, Complainant argues that, with regard to claim 1, M2 was aware of Complainant’s prior EEO activity, but even assuming that to be true, we note that a management official’s mere knowledge of a complainant’s prior EEO activity is not enough on its own to establish reprisal by a preponderance of the evidence. On appeal, Complainant further argues that M2’s claim that Complainant’s attendance record made her ineligible for overtime is “false” and creates a material issue of fact regarding whether or not poor attendance precludes being granted overtime. We note, however, that we have long recognized that the party opposing summary judgment must do more than merely recite facts or rest on her pleadings to demonstrate that such a genuine dispute of material fact exists. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247. 2020004759 5 Accordingly, the party opposing summary judgment must set forth specific facts showing that there is a genuine issue for trial. Id. at 250. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). In the instant case Complainant has provided no supporting evidence, such as, for example, a signed affidavit from an Agency fellow employee or management official, in support of her claim that poor attendance does not preclude being granted overtime. Furthermore, even assuming arguendo that neither the collective bargaining agreement nor internal Agency procedures prohibit granting overtime to workers with poor attendance, that does not establish that the Agency’s action was based on discrimination or reprisal, as opposed to, for example, simple irritation by M2 regarding Complainant’s attendance and a desire by M2 to not let Complainant benefit from overtime pay at the expense of other employees who maintained regular attendance. With regard to Complainant’s arguments that she was denied discovery, we note initially that Complainant admits in her appeal brief that when she was asked if she wanted to add a relevant document to the case, she “had no documents to add so that was a ‘no’.” Complainant argues that the AJ “wanted Complainant to provide names or specifics, however the information that Complainant needed could only be obtained through discovery.” We note, however, that discovery is not a fishing expedition. Given that Complainant was unable to identify specific documents to the AJ, we find that the AJ did not abuse his discretion in this regard. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we conclude that Complainant has not shown that discrimination or reprisal occurred. Therefore, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020004759 6 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. 2020004759 7 The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 12, 2021 Date